§706-669  Procedure for determining minimum
term of imprisonment.  (1)  When a person has been sentenced to an
indeterminate or an extended term of imprisonment, the Hawaii paroling
authority shall, as soon as practicable but no later than six months after
commitment to the custody of the director of the department of [public safety]
hold a hearing, and on the basis of the hearing make an order fixing the
minimum term of imprisonment to be served before the prisoner shall become
eligible for parole.



(2)  Before holding the hearing, the authority
shall obtain a complete report regarding the prisoner's life before entering
the institution and a full report of the prisoner's progress in the
institution.  The report shall be a complete personality evaluation for the
purpose of determining the prisoner's degree of propensity toward criminal
activity.



(3)  The prisoner shall be given reasonable
notice of the hearing under subsection (1) and shall be permitted to be heard
by the authority on the issue of the minimum term to be served before the
prisoner becomes eligible for parole.  In addition, the prisoner shall:



(a) Be permitted to consult with any persons the
prisoner reasonably desires, including the prisoner's own legal counsel, in
preparing for the hearing;



(b) Be permitted to be represented and assisted by
counsel at the hearing;



(c) Have counsel appointed to represent and assist
the prisoner if the prisoner so requests and cannot afford to retain counsel;
and



(d) Be informed of the prisoner's rights under (a),
(b), and (c).



(4)  The authority in its discretion may, in
any particular case and at any time, impose a special condition that the
prisoner will not be considered for parole unless and until the prisoner has a
record of continuous exemplary behavior.



(5)  After sixty days notice to the prosecuting
attorney, the authority in its discretion may reduce the minimum term fixed by
its order pursuant to subsection (1).



(6)  A verbatim stenographic or mechanical
record of the hearing shall be made and preserved in transcribed or
untranscribed form.



(7)  The State shall have the right to be
represented at the hearing by the prosecuting attorney who may present written
testimony and make oral comments and the authority shall consider such
testimony and comments in reaching its decision.  The authority shall notify
the prosecuting attorney of the hearing at the time the prisoner is given
notice of the hearing.  The hearing shall be opened to victims or their
designees or surviving immediate family members who may present a written
statement or make oral comments.



(8)  The authority shall establish guidelines
for the uniform determination of minimum sentences which shall take into
account both the nature and degree of the offense of the prisoner and the prisoner's
criminal history and character.  The guidelines shall be public records and
shall be made available to the prisoner and to the prosecuting attorney and
other interested government agencies. [L 1972, c 9, pt of §1; am L 1976, c 92,
§8; am L 1988, c 282, §1; gen ch 1993; am L 1996, c 4, §1 and c 193, §1]



 



COMMENTARY ON §706-669



 



  This section continues the policy of the previous law of
vesting in the Board of Paroles and Pardons the exclusive authority to
determine the minimum time which must be served before the prisoner will be
eligible for parole.  However, the Code differs from present law in two
respects:  (a) it does not recognize a sentence of imprisonment not subject to
the possibility of parole except the instances enumerated in §706-606(a), and
(b) it provides that the order of the Board shall be made upon the basis of a
prior hearing which, under subsection (3), affords the prisoner an opportunity
to be heard and a mode for participation.  Both concepts are suggested by the
Model Penal Code.[1]  In addition, subsection (3) specifically provides that
the prisoner will be afforded assistance and representation by counsel, if the
prisoner wishes.



  Subsection (2) continues the previous requirement that the
Board of Paroles arm itself with sufficient information concerning the prisoner
before it makes a determination as to parole eligibility.  Subsection (4) is a
continuation of the previous policy of granting to the Board the authority to
impose a special condition relating to the prisoner's behavior before the
prisoner will be eligible for parole.  Subsection (5) gives the Board the
discretionary power to reduce the minimum term previously fixed by its order. 
Subsection (6) insures that a record of the hearing will be made and preserved.



 



SUPPLEMENTAL COMMENTARY ON §706-669



 



  When the Legislature adopted the Code in 1972, it provided
for life imprisonment without possibility of parole in the four instances
enumerated in §706-606(a).



  Act 92, Session Laws 1976, substituted the terms "Hawaii
paroling authority" and "authority" for the term "board of
paroles and pardons" and "board."



  Act 282, Session Laws 1988, amended this section to allow the
prosecuting attorney to appear and present oral comment and written testimony
at minimum term hearings before the Hawaii paroling authority, disallowing oral
testimony by witnesses.  Senate Conference Committee Report No. 270, House
Conference Committee Report No. 96-88.



  Act 4, Session Laws 1996, amended this section by clarifying
that victims may present written statements or oral comments at minimum prison
term hearings before the parole board.  The legislature found that the practice
of the parole board was to permit victims or their representatives the
opportunity to comment at minimum term hearings, although current law did not
expressly provide for that opportunity.  The legislature agreed that victims
should be allowed to be heard and to be present at the hearings, and that
victims were entitled to be heard when the crimes involved property, as well as
when the crimes were against persons.  Senate Standing Committee Report No.
1972, House Standing Committee Report No. 1025-96.



  Act 193, Session Laws 1996, amended this section by providing
that the prosecuting attorney shall receive sixty days notice prior to the
reduction of minimum terms of imprisonment by the Hawaii paroling authority. 
Current law was unclear regarding whether the prosecuting attorney was entitled
to notice prior to the reduction of minimum terms of imprisonment by the
paroling authority.  The Act clarified that the prosecuting attorney is
entitled to notice.  Conference Committee Report No. 60.



 



Case Notes



 



  Mentioned with respect to claim of right as a defense.  63 H.
105, 621 P.2d 381.



  Section (1993) allows victim or their representatives the
opportunity to make oral comments at minimum prison term hearings before the
Hawaii paroling authority.  91 H. 20, 979 P.2d 1046.



  Neither chapter 706 nor chapter 353 prohibits the Hawaii
paroling authority from setting a prisoner's minimum term at a period equal to
his or her maximum sentence.  97 H. 183, 35 P.3d 210.



  This section required the Hawaii paroling authority to
conduct its minimum term hearing within six months of defendant's commitment to
the custody of the director of the department of public safety, and the
paroling authority was not jurisdictionally barred by §706-660.1(1) from
fulfilling this statutorily imposed duty.  111 H. 35, 137 P.3d 349.



  Where Hawaii paroling authority's minimum term decision was
in violation of the authority's guidelines as it failed to specify either the
level of punishment or the significant criteria upon which the decision was
based, the failure to include this information was arbitrary and capricious;
thus, an amended minimum term order issued by the authority did not
"cure" the authority's initial violation of its guidelines and the
petitioner did not have to show prejudice in order to obtain postconviction
relief from the minimum term order.  116 H. 181, 172 P.3d 493.



 



__________



§706-669 Commentary:



 



1.  See M.P.C. §§6.06, 6.07, 305.6 and 305.7.